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Employee Privacy Right in the Workplace

Federal and state laws provide for protection against invasion of privacy by employers. Most states recognize an employee’s "right to privacy" which the employer may not invade.

Government employees - Employees of government agencies are more privileged regarding privacy rights than their counterparts in the private sector. They have the protection of the United States Constitution that prohibits federal, state or local governments from conducting unreasonable searches and seizures. Public employees have a legitimate right to privacy until and unless the employer has reasonable and genuine reason for conducting a search or inquiry.

Private employees - Employees in the private sector are less privileged when it comes to privacy rights. Some states recognize the legitimate privacy expectations of private sector employees. However, they offer no guarantee of protection against reasonable searches of belongings, or against monitoring electronic mail and computer input and transmissions.

However, laws also limit privacy rights that may otherwise exist under common law. Company policies, to the extent permitted by law, likewise may increase or reduce expectations of privacy.

Courts have created a standard law that allows the employee to sue the employer for invasion of privacy. It basically covers four factors:

  • Privacy rights: intrusion - The employee has the right to be left alone, and there should be no unwanted or unreasonable intrusion into his/her personal space. This right can conflict with searches and monitoring activities.
  • Privacy rights: private affairs - Unwanted or unreasonable publicity regarding the employee’s private life or affairs, or disclosure of personal or medical information.
  • Privacy rights: defame - For example, publicity or the release of misleading or inaccurate information by the employer that defames the employee and puts him/her in a false light before the public.
  • Privacy rights: appropriation of name - Misuse of an employee’s name or likeness without consent, for the benefit of another.

Not all states recognize a common law right to privacy. Some states recognize some of the four privacy elements, but have rejected or not ruled on others. It is better to consult an attorney regarding the privacy law in the employee’s state, and to determine whether or not the employer has illegally invaded privacy.

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